The Generational Significance of the Travel Ban Cases
There are a number of ways for the challenge to President Trump’s “travel ban” to go wrong. But watching the Fourth of July fireworks earlier this week, I found myself dreaming of a way it could go splendidly, triumphantly right.
Though the court’s order promised argument “during the first session of October Term 2017,” at least some of the justices are plainly hoping that the case will be moot by then; indeed, they hinted as much by adding the mootness issue to the “questions presented” by the parties. It’s easy to see why. Mootness would let the justices dodge what they may see as unappetizing choices: they can either strike down the ban and create a lot of new caselaw that may bedevil future presidents, or approve the defiantly lawless thrashings of this uniquely incompetent executive on the other.
If the case is really moot by October, then God bless America, it’s moot. But as last month, this court can find a way to keep even dead cases in a kind of zombie state, staggering toward a preferred doctrinal conclusion. Whatever the state Knowing that the issue is coming back, what if the court stopped looking for an institutional exit and instead asked itself what resolution would be right?
